Study On The Duration Of Mortgage Right

Article two hundred and two of the "Property law" stipulates that mortgage duration and the period of limitation of action of principal creditor’s rights over the same period of existence. During the period of limitation of action of the principal creditor’s rights without the exercise of the right of mortgage, The eople’s Court shall not protect. The mortgage right as a kind of very important real right for security, the duration of the establishment has important significance. About the study on the duration of mortgage right, firstly, carry out comparison study with foreign related system. Selects some representative countries legal system of the Continental law system and Anglo-American law system, investigate it system structure and operation, obtain research enlightenment; Secondly, investigate the evolution of our country’s mortgage duration legal system, investigation and analysis about Taiwan region law and the view of Taiwan scholars about mortgage duration, investigate changes of the Mainland mortgage duration rules, mainly include:Guarantee Law of the judicial interpretation, scholars have suggested that the draft civil code, the draft of property law, two hundred and two article of "Property law". Article two hundred and two of "Property law" has a comparative advantage, has rationality and legitimacy. Comparative analysis of three views about nature of mortgage term:limitation of claim, scheduled period of claim, the attribute of mortgage right. The result of the nature about mortgage term is attribute of mortgage right. Article two hundred and two of the "Property law" stipulates that mortgage duration and the period of limitation of action of principal creditor’s rights over the same period of existence, when the principal creditor’s right after the expiration of limitation, mortgage duration and main debt expiration of limitation the same legal consequences, lose the force of law protection, such a system will have to promote the mortgagee to exercise their rights of action, end of debtor-creditor relationship on burden lifting, mortgage legal relationship between parties to exercise the right to promote economic development; mortgage duration and the period of limitation of action of principal creditor’s rights over the same period of existence, the principal debt expiration of limitation, the mortgagor have the same effectiveness of defense right, this institutional arrangement of the mortgagor and mortgagee make there interests balance, solve the problem that mortgage have overweight burden, raising motivation of mortgage take part in mortgage legal relationship, provide a good space for mortgage legal relationship’s development, objectively it is beneficial to the mortgage system development; mortgage duration and the period of limitation of action of principal creditor’s rights over the same period of existence, in line with the subordinate character of mortgage, not only provide a good legal protection for economic development, but also maintain the real right law legal system. Article two hundred and two of the "Property law" stipulation is not perfect, there are some problems need to clear:first of all, the parties to the mortgage term is agreed issues not clearly defined, the establishment of mortgage contract is party autonomy results, mortgage duration does not belong to the range of real right legalization, the legal principle of property right and the freedom of contract principle role in different fields, the parties to the mortgage term agreement is consistent with the principle of freedom of contract, do not violate the legal principle of property right; secondly, about mortgage duration starting point and reasonable mortgage period length, in the case of the parties have not agreed, the principal creditor’s rights to fulfill the expiration of the period as mortgage duration starting point is an important influence factor, the principal creditor’s right to perform at the expiration of the time limit according to the specific conditions to make scientific and reasonable determination; on the mortgage period length of rationality, the law should allow mortgage legal relationship of the parties in accordance with the principle of change of circumstances and parties of interest balancing principle of double meaning autonomous negotiation or request the court to determine the duration of mediation, this is both equity and efficiency regulations; the people’s court shall not protect meaning identified as the mortgagee claim without legal force protection at the same time mortgages the human to the mortgagee and the mortgagee the same effectiveness of defense right; mortgage legal relationship ended after the lifting of the registration, can learn from the public notice system and announcement system of matter in the form of the burden on the lift, this solution to the current system minimal effect, consider both of the mortgage legal relationship parties interest, legislators should according to the relevant policies and value judgment to make judicial interpretation, in order to achieve the purpose of legal guarantee of economic development, on the mortgage term system for scientific and reasonable construction and improvement of the legal relationship in order to promote the development of mortgage.